Proposed rule which would prohibitdepartmental employes from making anyinformation obtained under Section 111.36,Stats., of the Fair Employment Practices Actprior to the time an adjudicatory hearingtakes place, if used as a blanket to prohibitpersons from inspecting or copying publicpapers and records, would be in violationof Section 19.21, Stats.

Open meeting statute,Section 66.77, Stats., discussed.

Under Section 111.36, Stats., the stage atwhich publicity is to be given to complaintor proceedings is for the department, butsubject to Sections 19.21 and 66.77, Stats.

Under Section 101.60 (3), Stats., FairHousing Law, the department is precluded fromactively publicizing complaints only at thosestages before the department finds thatconference, conciliation and persuasion havenot eliminated the alleged discrimination.

You have requested my opinion whether aproposed rule which would prohibit theDepartment or any of its agents or employeesfrom making public, prior to the time anadjudicatory hearing actually takes place,any of the information obtained by theDepartment acting pursuant to its authorityunder Section 111.36, Stats., would be inviolation of the anti-secrecy law, Section66.77, Stats. (renumbered from Section 14.90,Stats., by Chapter 276, Section 62, Laws of1969), or Section 19.21, Stats, (renumberedfrom Section 18.01, Stats., by Chapter 259,Section 6, Laws of 1969) relating to theright of the public to examine and copyrecords and documents in possession of apublic officer.

Section 111.325, Stats., makes it unlawfulfor any employer, labor organization,licensing agency or person to discriminateagainst any employe or any applicant foremployment or licensing.

Discrimination is defined in Section111.32(5), Stats., to include discriminationbased on age, race, color, handicap, sex,creed, national origin or ancestry.

Section 111.33, Stats., provides that theDepartment may adopt rules and regulationsto carry out the Subchapter and mayconduct proceedings, hearings,investigations or inquiries.

Section 111.35, Stats., provides that theDepartment shall investigate the existence,causes and character of discrimination; studyways of elimination and plan therefor;publish and disseminate reports embodying itsfindings and results of investigations andfindings; confer and educate; make specificand detailed recommendations to theinterested parties and report itsrecommendations to the legislature.

Section 111.36, Stats.,is concerned with the powersof the Department to

"receive and investigate complaints charging discrimination or discriminatory practices in particular cases, and give publicity to its findings with respect thereto."

In carrying out the provisions of this Subchapter the department and its duly authorized agents are empowered to hold hearings, subpoena witnesses, take testimony and make investigations in the manner provided in chapter 101.

The department or its duly authorized agents may privilege witnesses testifying before them under the provisions of this Subchapter against self-incrimination.

111.36(3)

If the department finds probable cause to believe that any discrimination as defined in this Subchapter has been or is being committed, it shall immediately endeavor to eliminate the practice by conference, conciliation or persuasion.

In case of failure so to eliminate the discrimination, the department shall issue and serve a written notice of hearing, specifying the nature of the discrimination which appears to have been committed, and requiring the person named, hereinafter called the "respondent" to answer the complaint at a hearing before the department.

The notice shall specify a time of hearing not less than 10 days after service of the complaint, and a place of hearing within either the county of the respondent's residence or the county in which the discrimination appears to have occurred.

The testimony at the hearing shall be taken down by a reported appointed by the department.

If, after hearing, the department finds that the respondent has engaged in discrimination, the department shall make written findings and recommend such action by the respondent as will effectuate the purpose of this Subchapter and shall serve a certified copy of the findings and recommendations on the respondent together with an order requiring the respondent to comply with the recommendations, the order to have the same force as other orders of the department and be enforced as provided in Chapter 101.

Any person aggrieved by noncompliance with the older shall be entitled to have the same enforced specifically by suit in equity.

If the department finds that the respondent has not engaged in discrimination as alleged in the complaint, it shall serve a certified copy of its findings on the complainant together with an order dismissing the complaint.

It is clear from a reading of the statutethat even where formal complaint is made theDepartment is not confined to conductinginvestigations by formal hearing.

The commission or any of its agents or employes shall not make public in any manner whatever any of the information obtained by the commission, or its agent, pursuant to its authority under Section 111.36, Stats. prior to the time a hearing actually takes place.

I am of the opinion that the proposed rulewould violate Section 19.21(2) and (4),Stats., if it were used as a blanketapplicable to all proceedings underSection 111.36, Stats., to prohibitall persons from inspecting and copyingpapers and records required by law to befiled, deposited or kept, papers inpossession of such officer, or papersto the possession of which he isentitled as such officer.

Section 19.21(1) and (2), Stats., provides:

19.21(1)

Each and every officer of the state, or of any county, town, city, village, school district, or other municipality or district, is the legal custodian of and shall safely keep and preserve all property and things received from his predecessor or other persons and required by law to be filed, deposited, or kept in his office, or which are in the lawful possession or control of himself or his deputies, or to the possession or control of which he or they may be lawfully entitled, as such officers.

19.21(2)

Except as expressly provided otherwise, any person may with proper care, during office hours and subject to such orders or regulations as the custodian thereof prescribes, examine or copy any of the property or things mentioned in Subsection 19.21(1).

Any person may, at his own expense and under such reasonable regulations as the custodian prescribes, copy or duplicate any materials, including but not limited to blueprints, slides, photographs and drawings.

Duplication of university expansion materials may be performed away from the office of the custodian if necessary."

(As amended by Chapter 219, Laws 1969.)

Administrative agencies have only suchpowers as are expressly granted ornecessarily implied.

While the Department has rule-makingauthority under Chapter 227, Section101.10(7), Stats., and, with respect to thisarea, Section 111.38, Stats., its rulescannot be contrary to the provisions ofSections 19.21 and 66.77, Stats., absentspecific statutory authority to the contrary.

Nowhere in Sections 111.31-111.37, orin that part of Chapter 101 made applicableto Section 111.36, is there authority toadopt the rule referred to.

There may be good reason to preclude publicinspection of records and papers prior tothe time notice of formal hearing underSection 111.36, Stats., is given; however,in view of the general policy established bySections 19.21 and 66.77, Stats., any blanketlimitation on the right of public inspectionor open meeting is for the legislature.

The legislature has provided speciallegislation with respect to theFair Housing Law.

The procedures followed by the Departmentunder Section 101.60(4), Stats., areessentially similar to those providedin Section 111.36, Stats.

No publicity shall be given a complaint in those cases where the department obtains compliance; or finds that the complaint is without foundation."

With respect to the Federal Equal OpportunityCommission, federal law provides thatwhenever it is claimed in writing by a personclaimed to be aggrieved or where a member ofthe Commission has made written charge thatan employer, employment agency or labororganization has engaged in unlawfulemployment practice, the Commission shallfurnish the person charged:

with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission.

If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.

Nothing said or done during and as a part of such endeavors may be made public by the Commission without the written consent of the parties, or used as evidence in a subsequent proceeding.

Any officer or employee of the Commission, who shall make public in any manner whatever any information in violation of this subsection shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than one year."

It will be noted that the proscription runsonly against officers and employes of theCommission and does not apply to stateofficers or employes, even where the federalagency notifies the state and gives the statetime to act pursuant to state law.

If your department is of the opinion thatsimilar provisions would be in the publicinterest in eliminating discrimination inhousing and employment and licensingpractices, the matter should be brought tothe attention of the legislature.

The provisions of Section 19.21, Stats.,would not require an officer having custodyof papers in a specific matter to allowexamination and copying if he determinedthat inspection would be detrimentalto the public interest.

In such case he must specifically statethe reasons for refusal and the personseeking inspection could institute courtaction to compel inspection.

Section 66.77, Stats. (formerly 14.90,Stats.), the anti-secrecy statute, wouldapply to the Department (Commissioners),but as pointed out in 52 OAG 363 (1963) and54 OAG i, vii (1965), it is only applicableto meetings of administrative bodies,whether or not formal action is taken.

The proposed Rule IND. 88.05 couldconceivably be used in violation ofSection 66.77, Stats. However, presentprocedures of the Department would notoffer great opportunity for breach.

A basic but sometimes overlooked fact is that Section 14.90 applies only to meetings of bodies. Thus meetings between the one-man head of a department and a member of his staff, or even a meeting of the entire staff of a department, may not be covered by the anti-secrecy law because the staff does not constitute a body. On the other hand, meetings of statutorily defined public bodies, such as the state university board of regents, clearly are covered by Section 14.90.

There is no doubt but that commissionerscomprise an administrative body.

It is questionable, however, whether onecommissioner, or an agent acting alonefor the Department, does in everycase constitute a body.

I am of the opinion that an examiner who wasconducting an investigation by hearing, priorto an adjudicatory hearing on notice afterconciliation and conference failed, couldexclude the public in a case where it washis duty to investigate and report hisrecommendations to the Commission fortheir determination of probable cause.

I am of the further opinion that acommissioner or examiner could privatelyconduct conferences with the complainingparty and party complained against for thepurposes of conciliation or persuasion.

In the usual case there would be noformal action on the part of thecommissioner or examiner.

The Commissioners cannot order an agreementbetween the parties at this stage.

It might be better procedure, however, wheresuch conferences are conducted by theCommissioners, to publicly announce areason why the conference is beingrestricted to the parties.

While it is questionable whether suchconferences constitute meetings of a publicbody at which formal action may be taken,Subsection (3)(d) of Section 66.77, Stats.,permits closed meetings for conducting publicbusiness which for competitive or bargainingpurposes requires closed meetings.

Subsection 66.77(3)(b) might be involved incertain cases under Sections 111.31-111.37,Stats., where the charge is against a personlicensed by the state, and Subsection66.77(3)(e) relating to "financial, medical,social or personal histories and disciplinarydata which may unduly damage reputations"could be involved.

However, where a matter has gone to theconference, conciliation and persuasionstage, there will generally be sufficientspecific reasons available to justifyclosing by the Commissioners.

Where Section 66.77, Stats., is applicable,assuming presence of an administrative body,and a meeting, the general rule is that inorder to close any meeting or portion,specific reasons must be stated asto why the meeting is to be closed.

Notice of the closing can be given at thetime of closing; however, notice of theconference is given in the usual case byletter to the parties and could contain astatement that the conciliation conferencewould be closed to the general public.

Notice of such conference and reasonsfor closing the same could be given tothe public by means of prior postingin the building or other public area.

Your second question is at what point theDepartment can give publicity to itsfindings under Section 111.36, Stats.

You further inquire whether the Departmentcan give publicity to a findingof probable cause.

Section 111.36(1), Stats., provides that theDepartment may receive and investigatecomplaints and "give publicity to itsfindings with respect thereto."

Under the statute, the Department is notprecluded from giving publicity at any stagesubsequent to the filing of the complaint,which must be in writing by reason ofdepartmental rule.

The point at which publicity shouldbe given under present statutes isa matter of departmental policy.

The Department might wish to follow thefederal policy referred to above or thepolicy set forth in Section 101.60(3),Stats., applicable to the Fair Housing Law.

Where access to records or documents in thepossession of departmental officers issought, it cannot prevent the partiesconcerned or third parties from publicizingsuch materials absent foreclosing inspectionin the public interests, on the basis ofspecific reasons stated, in compliance withthe mandate of the Youmans case, supra.

Your third question is at what point theDepartment can give publicity to itsfindings under Section 101.60(3), Stats.,of the Fair Housing Law.

This section shall be administered by the department of industry, labor and human relations through its division of equal rights.

The department may promulgate such rules as are necessary to carry out this section.

No publicity shall be given a complaint in those cases where the department obtains compliance with this section or the department finds that the complaint is without foundation.

I am of the opinion that this provisioncannot be used by department officers to denyall persons the right to inspect and copypublic records and documents which isguaranteed under Section 19.21, Stats.

Refusal can only be denied on a case-by-casebasis where the officer having custodyinitially determines that inspection would bedetrimental to the public interest and givesspecific reasons for such denial.

The provision in Section 101.60(3), Stats.,could be a supporting reason in such refusal,as it shows a legislative intent that atcertain stages of the process to eliminatediscrimination the Department shall notactively publicize.

It is commonly recognized that publicizingefforts to eliminate discrimination withrespect to specific instances can be abeneficial tool in deterring its generalspread or in eliminating it.

The legislature, however, has apparentlyrecognized that harm can be caused toindividuals or corporations unfairly charged,or who may be unaware of a violation andpromptly comply when state action is taken.

The provision in Section 101.60(3), Stats.,is somewhat vague as to the point in theproceedings where active publicity bythe Department is proscribed.

I construe the restraint as running onlyagainst the Department or its employes.

In my opinion it is not restrictive on thecomplainant, the party charged, or suchpersons who may lawfully be apprised of theproceedings through inspection of publicrecords or otherwise.

It should be noted that Section 101.60(3),Stats., provides in part:

No publicity shall be given a complaint

Other language in Subsection 101.60(3),however, extends the prohibition to someproceedings beyond the complaint stage.

Section 101.60(4)(a), Stats., providesthat the Department may receive andinvestigate complaints which mustbe written and verified.

Subsection 101.60(4)(b) provides that theDepartment is empowered to investigate,hold hearings and take testimony.

If the department finds probable cause to believe that any discrimination has been or is being committed in violation of this section, it shall immediately endeavor to eliminate such discrimination by conference, conciliation and persuasion.

If the department determines that such conference, conciliation and persuasion has not eliminated the alleged discrimination, the department shall issue and serve a written notice of hearing, specifying the nature and acts of discrimination which appear to have been committed, and requiring the person named, hereinafter called the "respondent" to answer the complaint at a hearing before the department.

The notice shall specify a time of hearing, not less than 10 days after service of the complaint, and a place of hearing within the county in which the act of discrimination is alleged to have occurred.

In all hearings, except those for determining probable cause, before the department the burden of proof shall be on the party alleging discrimination.

If, after the hearing, the department finds by a fair preponderance of the evidence that the respondent has engaged in discrimination in violation of this section, the department shall make written findings and recommend such action by the respondent as will effectuate the purpose of this section and shall serve a certified copy of its findings and recommendations on the respondent and complainant together with an order requiring the respondent to comply with the recommendations, the order to have the same force as other orders of the department and be enforced as provided in this section except that the enforcement of such order shall automatically be stayed upon the filing of a petition for review with the circuit court for the county in which the alleged discrimination took place.

If the department finds that the respondent has not engaged in discrimination as alleged in the complaint, it shall serve a certified copy of its findings on the complainant and the respondent together with an order dismissing the complaint.

Where the complaint is dismissed, costs in an amount not to exceed $100 plus actual disbursements for the attendance of witnesses may be assessed against the department in the discretion of the department.

I am of the opinion that the provision ofrestraint as to publicity contained inSection 101.60(3), Stats., is applicableagainst the Department or its agents onlyat those stages before the Departmentfinds that the conference, conciliationand persuasion have not eliminatedthe alleged discrimination.

It is my opinion that the legislature did notintend that the Department refrain fromgiving publicity where it finds that there isprobable cause for discrimination that hasbeen or is being committed, and where effortsto eliminate it without the necessity of theadjudicatory hearing have failed.

I do not believe that the legislature couldhave intended that the Department should beprecluded from actively publicizing thefinal outcome of an adjudicatory hearing,where the order is subject to judicialreview by either party.

Section 101.60(5), Stats., provides thatsuch judicial review shall be a trialde novo with right to a jury.

Final compliance could conceivably bedelayed until after appeal tothe supreme court.